Sri. M. Nagaraju Vs Government of Karnataka

SRI. M. NAGARAJU S/O LATE MALLE BYRAPPA AGED ABOUT 50 YEARS RESIDING AT MARASARAHALLI VILLAGE BANAVASI POST, MARALAWADI HOBLI KANAKAPURA TALUK RAMANAGARA DISTRICT 562121.

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(BY SRI. LOKESH L.N. ADV., FOR SRI. SUDHAKAR G.V. AND SRI. B. PRAMOD, ADVS.,)

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…PETITIONER

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AND:

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GOVERNMENT OF KARNATAKA REP. BY ITS CHIEF SECRETARY VIDHANA SOUDHA DR. AMBEDKAR VEEDHI BENGALURU-560001.

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THE TAHSILDAR KANAKAPURA TALUK RAMANAGARA DISTRICT 562117.

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THE VILLAGE ACCOUNTANT MARALAWADI CIRCLE MARALAWADI HOBLI KANAKAPURA TALUK RAMANGARA DISTRICT 562121.

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HC-KAR

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THE PRESIDENT DODDAMARALAWADI GRAMA PANCHAYATH MARALWADI HOBLI KANAKAPURA TALUK RAMANAGARA DISTRICT 562121.

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THE PANCHAYATH DEVELOPMENT OFFICER MARALAWADI GRAMA PANCHAYATH MARALAWADI HOBLI KANAKAPURA TALUK RAMANAGARA DISTRICT 562121.

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…RESPONDENTS

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(BY SRI. S.N. BHAT, ADV., FOR IMPLEADING APPLICANT IN I.A 1/22 AGA FOR R1 TO R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND

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227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 27.07.2022, PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, KANAKAPURA, RAMANAGAR DISTRICT, IN MA NO.7/2019 (ANNEXURE-M) & ETC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY,

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ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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HC-KAR

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ORAL ORDER

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This writ petition is filed challenging the order dated 27.07.2022 passed in M.A.No.7/2019 by the Senior Civil Judge and JMFC., Kanakapura, Ramanagara District (for

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short, 'the Appellate Court' )

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Heard Sri.Lokesh L.N., learned counsel for Sri.Sudhakar G.V. and Sri.B.Pramod, learned counsel appearing for the petitioner and learned AGA for respondent Nos.1 to 3.

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The petitioner herein has filed suit in O.S.No.111/2019 against the respondents for mandatory injunction directing the respondents-defendants and their officials not to vacate the petitioner-plaintiff from the suit schedule property in any manner except due process of law. The suit schedule property is a milk vending booth constructed at Dodda Maralawadi Grama Panchayath premises, in the Government property belonging to Dodda Maralawadi Grama Panchayath measuring 10 feet x 10

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HC-KAR

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feet. Along with said plaint, the plaintiff has filed an application under Order XXXIX Rule 1 and 2 read with Section 151 of CPC seeking temporary injunction against the defendants. The Additional Civil Judge and JMFC., Kanakapura (for short, ' the trial Court' ), after hearing the parties to the suit, by order dated 11.11.2019 allowed I.A.No.1 filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC restraining the defendants from interfering, dispossessing or evicting the plaintiff from the suit schedule property without due process of law till the disposal of the suit.

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The records indicate that the Grama Panchayath has preferred Miscellaneous Appeal in M.A.No.7/2019 challenging the aforesaid order of the trial Court. The appellate Court has recorded the findings at para Nos.13 and 14 with regard to the title and nature of possession of the plaintiff and come to conclusion that the possession given by the Grama Panchayath was only a permissive possession with certain conditions. The

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HC-KAR

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Appellate Court on considering the fact that the plaintiff not being the title holder and there being no binding contract between the parties, vide order dated 27.07.2022 allowed the appeal of the Grama Panchayath and vacated the temporary injunction order granted by the trial Court.

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It is to be noticed that the plaintiff has filed the suit for injunction on the ground that he was running a milk vending booth in the property which was vacated by the Grama Panchayat for widening of the road on the assurance to the plaintiff that he would be accommodated elsewhere by allowing him to erect the milk vending booth in the Grama Panchayath property.

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The records indicate that the defendant No.5 - Panchayath Development Officer of the said Grama Panchayat issued No Objection Letter dated 28.02.2019 in favour of the plaintiff stating that they have no objection to construct milk vending booth measuring 10x10 in Dodda Maralawadi Grama Panchayath premises with a

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HC-KAR

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condition that the plaintiff should construct the shop and operate the booth in the said premises at his own expenses.

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The defendants are not in dispute that they have issued No Objection certificate to erect the milk vending shop by the plaintiff. It is also to be noticed that based on such No Objection Certificate produced at Annexure-F, the plaintiff has erected the structure and carrying out milk vending business and thereafter the defendants-Grama Panchayath are trying to evict him without due process of law, which compelled the petitioner-plaintiff to file a suit for injunction, and the trial Court, considering the nature of possession of the petitioner-plaintiff, has come to the conclusion that the plaintiff has made out a prima facie case to grant the temporary injunction.

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It is to be noticed that the possession of the

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petitioner-plaintiff over the milk vending shop which is

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HC-KAR

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referred as suit schedule property is not disputed by the defendants - Grama Panchayath and the said possession is based on the No Objection Certificate provided by Grama Panchayath. The Appellate Court erroneously came to the conclusion that the petitioner-plaintiff has no title over the suit schedule property and the contract is not binding and the possession of the plaintiff is permissive possession. It is not in dispute that the possession of the petitionerplaintiff is a permissive possession, however, he cannot be evicted without the due process of law. Hence, I am of the considered view that the Appellate Court has committed grave error in setting aside the order of the trial Court dated 11.11.2019 passed in O.S.111/2019 on an application under Order XXXIX Rules 1 and 2 read with Section 151 of CPC filed by the petitioner-plaintiff.

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It is also to be noticed that the impugned order of the Appellate Court is stayed by this Court way back in the year 2022 and the said order is in force till this day.

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HC-KAR

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For the aforementioned reasons, I proceed to pass the following:

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ORDER

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i. Writ petition is allowed .

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ii. The order dated 27.07.2022 passed in M.A.No.7/2019 by the Senior Civil Judge

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and JMFC., Kanakapura, Ramanagara District is hereby set aside.

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iii. The order dated 11.11.2019 passed on I.A.No.1 filed under Order XXXIX Rule 1 and 2 read with Section 151 of CPC in O.S.No.111/2019 by the Additional Civil Judge and JMFC., Kanakapura, shall continue till the disposal of the suit by the trial Court.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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BSR List No.: 1 Sl No.: 6

Sri. M. Nagaraju v. Government of Karnataka

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Sri. M. Nagaraju v. Government of Karnataka

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